Poly Abdallah Mwinshehe v. Torture Claims Appeal Board

HCAL 1246/2019

[2023] HKCFI 1401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1246 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Tanzania who last arrived in Hong Kong on 2 April 2006 as a visitor with permission to remain as such up to 1 July 2006 when he did not depart and instead overstayed, and was arrested by police on some 2 months later on 13 September 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Tanzania he would be harmed or killed by his business partner over their business dispute, and after it was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dar Es Salaam, Tanzania. After leaving school he ran his own clothing business, got married and raised a family with 2 children in his home district.

3.In November 2005 a business associate Hamza from his home district joined his clothing business with an injection of capital and by looking after the business while the Applicant could travel to Hong Kong and Mainland China to purchase goods and materials for their business.

4.During one of his such trips in Hong Kong in 2006, the Applicant’s passport expired and as a result he overstayed in Hong Kong, for which he was subsequently arrested and charged for breaching his condition of stay and was subsequently convicted and sentenced to prison for 14 days suspended for 18 months, but during the period when he was in Hong Kong going through his legal process and was therefore unable to return to Tanzania in time to clear the customs for those goods which he had earlier purchased for the business and sent back to the country, and that such delay eventually led to those goods being confiscated by the Tanzanian Customs and caused serious financial loss to the company, for which his business partner Hamza blamed him and threatened to kill him when he returned to Tanzania.

5.Fearing for his life, the Applicant was afraid to return to Tanzania, and therefore raised a torture claim in Hong Kong to the Immigration Department, and after it was rejected, he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 21 April 2017 with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 11 May 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his business partner Hamza upon his return to Tanzania, that there was no reliable evidence of any real intention of him to harm or kill the Applicant, that in any event it was a private business or monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Tanzania with a large population of 52 million people spread across a territory of more than 947,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other part of the country away from his home district in large cities such as Dar Es Salaam and Mbeya where it would be difficult if not impossible for Hamza to locate him.

8.On 22 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing 21 November 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 April 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found serious inconsistencies and lack of necessary details on important aspects of his case in the Applicant’s evidence such as his alleged business with Hamza when he was unable to even give the full name and background details of Hamza despite claiming to have known him for 7 years in his home district and having entered into a valuable business arrangement with him that it doubted the credibility of his claim of fear of harm from Hamza that caused him to overstay in Hong Kong, and that in any event even if his claimed fear or risk is real that it was a just some business dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Tanzania as well as reasonable internal relocation for him to safely move to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 9 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he rejects the decision due to the current situation in Tanzania but without providing any details or particulars or elaboration as to how or why it should be rejected, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 22 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as from reliable and relevant COI which did not support or corroborate his claimed risk, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Tanzania, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 24^th day of May 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1